Chilean Healthcare Rights and Abortion Theories
Abortion Theories in Chile
Mohor Theory: Women could be saved from punishment by arguing that an abortion was motivated by an irresistible force or duress (causal justification for preventing crime, Art. 10 CP). In this case, the crime may have occurred, but the woman escapes punishment because she acted under duress, which exempts her from criminal offense. This theory suggests that no one can claim to be a hero and behave as expected in such situations.
Theory of Double Effect: According to the Criminal Code (CP), an offense is a voluntary act or omission punishable by law. The act must be directly aimed towards the punishable end (in this case, the death of the child). For the offense of abortion, the intention must be to kill the fetus. In a therapeutic abortion, the fetus dies as a result of saving the mother’s life or health. However, this action’s primary intention is not the death of the fetus, therefore it is not a crime. Those who accept this theory argue that therapeutic abortion is not a crime and therefore does not involve punishment for the mother or doctor. Legally, the unborn child is considered a person with rights protected by Art. 19. Therefore, any form of abortion is illegal, except for spontaneous abortion or that produced by a non-directed action.
Illegitimate Pressure and Torture
Illegitimate Pressure: Any measure or action performed to encourage specific conduct can be physical or moral, legitimate or illegitimate. It is legitimate if permitted by law (e.g., arresting a spouse or parent who refuses to pay child support). Illegitimate constraints include unlawful arrest, threats of arrest, expulsion, false arrest, death threats, conditioning services on sexual favors, and torture.
Torture: The infliction of physical or mental suffering by state agents or individuals acting on behalf of public officials to obtain a desired outcome, such as a statement or testimony. It is classified as a crime against humanity, punishable internationally by the 1984 International Treaty Against Torture and the 1986 OAS treaty.
Right to Healthcare Protection
Traditional Concept (Until 1947): Health is the state of being free from disease. Health activities include curative medicine and rehabilitation.
20th-Century Concept: Health is a state of complete physiological and psychological well-being. Health activities include health promotion (e.g., building airports, promoting healthy diets, constructing gyms) and health protection (e.g., vaccination campaigns, preventive medicine).
Right to Free and Equal Access to Healthcare
The 1985 Act (No. 18,469) states that no one can be forced to undergo medical treatment. However, if exercising this freedom threatens another’s life, this freedom can be overridden. Legal action can be taken to force medical treatment, even by force, as the right to life is paramount. Equal opportunity, according to Swedish doctrine, is the minimum level of resources compatible with human freedom. However, this depends on a state’s resources and level of development. Legal equality means that laws should not discriminate or allow arbitrary treatment. Funding for healthcare can be through Fonasa or Isapres, with mandatory payments (percentage discounts from salary) allowed by the Constitution.
Right to Choose Healthcare System
Public Health System: Healthcare services provided through state-owned hospitals and clinics, administered by “Public Services.” Funded through general taxes, free for the poor and indigent, or subsidized through Fonasa.
Private Health System: Healthcare services provided by the private sector, paid for entirely by individuals or subsidized through Isapres.
Right of Healthcare Professionals to Provide Services
During Allende’s Popular Unity government, the proposed socialization of healthcare posed a threat to the free exercise of the medical profession. The Constitution (Art. 19, No. 9) guarantees the right of healthcare professionals to provide private services, subject to laws ensuring technical adequacy.